United States District Court, E.D. New York
YENDY CRUZ on behalf of himself and all others similarly situated, Plaintiff,
CREDIT CONTROL SERVICES, INC. d/b/a CREDIT COLLECTION SERVICES, Defendant.
MITCHELL L. PASHKIN Attorney for the Plaintiff By: Mitchel L.
Pashkin, Esq., Of Counsel.
MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, P.C. Former
Attorneys for the Defendant By: Joseph A. Hess, Esq., Of
MEMORANDUM OF DECISION & ORDER
D. SPATT, UNITED STATES DISTRICT JUDGE
Plaintiff, Yendy Cruz, (“Cruz” or the
“Plaintiff”) initiated this putative class action
against Credit Control Services, Inc., d/b/a Credit
Collection Services (“CCS” or the
“Defendant”), for damages stemming from alleged
violations of the Fair Debt Collection Practices Act, 15
U.S.C., 1692 et seq. (“FDCPA”). The
Plaintiff contends that the Defendant failed to inform the
Plaintiff in a debt collection letter (the
“Letter”) that the amount of debt may increase
due to pre-judgment interest under NY C.P.L.R. § 5001
and improperly used the name Credit Collection Services in an
attempt to collect debt. Further, the Plaintiff alleges that
the Letter was an unfair or unconscionable means to collect a
to its ruling, the Court notes that the Plaintiff's
memorandum does not conform to this Court's Individual
Rule IV.B., as it fails to include a table of contents for a
briefing that is longer than 10 pages. The Court advises the
Plaintiff's counsel to conform to this Court's
Individual Rules in the future.
before the Court is a motion by the Defendant, pursuant to
Federal Rule of Civil Procedure (“Fed. R. Civ.
P.” or “Rule”) 12(b)(6) to dismiss the
Plaintiff's entire complaint. For the following reasons,
the Defendant's motion to dismiss pursuant to Rule
12(b)(6) is granted.
The Factual Background
otherwise noted, the following salient facts are drawn from
the complaint and are construed in favor of the Plaintiff.
Plaintiff, a natural person, is the recipient of the Letter.
Cruz resides at 72 Randall Avenue, Freeport, New York 11520.
Complaint ¶¶ 5, 7.
the Defendant in this action, is a debt collection agency
that is incorporated in the State of Delaware. Its principal
place of business is Two Wells Avenue, Newtown, Massachusetts
02459. Id. ¶ 10.
about November 27, 2015, the Defendant sent the Plaintiff the
Letter in an attempt to collect an outstanding debt of
$166.97. Id. ¶ 13. The Letter, sent on
“Credit Collection Services” letterhead, informed
Cruz that the “amount of the debt” was $166.97,
and that the creditor was Geico Indemnity Company. Further,
the Letter stated, in pertinent part: “Once full
payment has been posted by this office, your account will be
closed and returned to your creditor as paid-in-full.”
Id. Exhibit 1. Specific instructions were provided
for submitting payment to the Defendant.
about January 7, 2016, the Defendant sent the Plaintiff
another debt collection letter (the “January
Letter”) in an attempt to collect the Plaintiff's
$166.97 debt. The January Letter offered Cruz the opportunity
to pay 80% of the amount of the debt in exchange for the
settlement of the account. Specifically, if the Plaintiff
paid $133.58 to the Defendant, “[the Plaintiff's]
account will be closed and returned to [Geico] as
The Procedural Background
November 28, 2016, the Plaintiff commenced this action
against the Defendant in the Supreme Court of the State of
New York, County of Nassau, alleging violations of N.Y.
General Business Law § 349 and numerous provisions of
April 6, 2017, the Defendant filed a notice of removal to
Plaintiff filed the complaint on May 23, 2017 and attached
the Letter as Exhibit 1.
separate case with the same caption, No.
2:17-cv-02590-ADS-GRB (“Cruz II”), the
Plaintiff filed an action in the Supreme Court of the State
of New York, County of Nassau on January 6, 2017. Cruz
II was based on the January Letter and claimed
violations of N.Y. General Business Law § 349 and the
same provisions of the FDCPA as alleged in this case.
II was removed to this Court on May 2, 2017 and that
complaint was filed in this Court on May 2, 2017. The
Cruz II complaint alleged identical violations of
the FDCPA. The Defendant answered on May 16, 2017. On July
10, 2017, an initial conference was held before Magistrate
present motion in this action was filed on June 6, 2017 by
the Defendant seeking to dismiss the entire complaint in this
action, pursuant to Rule 12(b)(6).